Durrance v. Schad

Court of Appeals of Georgia, Third Division

May 21, 2018

DURRANCEv.SCHAD.

ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
PHIPPS

Phipps, Senior Appellate Judge.

After
Raymond C. Schad dismissed his petition seeking a stalking
temporary protective order ("TPO") against Lorri S.
Durrance, Durrance filed a motion seeking her costs and
attorney fees associated with defending against that
petition. Following an evidentiary hearing, the trial court
denied Durrance's motion. Durrance appeals, asserting
that the trial court abused its discretion in refusing to
award her costs and legal fees under OCGA § 16-5-94 and
OCGA § 9-15-14 (b). Additionally, Durrance contends that
the trial court committed legal error when it refused to
award her fees and costs under OCGA § 9-15-14 (a). For
reasons explained more fully below, we find no abuse of
discretion by the trial court in refusing to award fees under
OCGA § 16-5-94. We further find, however, that given the
absence of any evidence supporting Schad's claim of
stalking, the trial court erred when it failed to award
Durrance costs and attorney fees under OCGA § 9-15-14
(a).

Viewed
in the light most favorable to the trial court's ruling,
the record shows that in approximately February 2017, Schad
performed some repair or remodeling work on the residence of
Durrance and her husband. At some unspecified time between
February and June 2017, Schad became employed with Jasper
County as a building inspector. On June 28, 2017, believing
that Schad had not completed the work at her residence,
Durrance called Schad's wife, who handled his billing. A
short time later, Schad arrived at the real estate office
where Durrance worked, driving his county-owned truck and
wearing his county uniform. The two began to discuss the work
Schad had done for Durrance and the conversation became so
heated that one of Durrance's coworkers eventually forced
Schad to leave. Durrance reported the incident to police, who
contacted Schad's supervisor. Schad was subsequently
served with a warrant for trespass.

On June
30, two days after the incident, Schad filed a pro se
petition for a stalking TPO. Schad alleged that Durrance had
committed "acts of stalking" in violation of OCGA
§ 16-5-90 by making the following statements: "You
sealed your doom"; "I know people and will have
your job"; and "I'll get you." Schad
further alleged that "similar events may occur in the
future" and that this conduct "placed [Schad] in
reasonable fear for . . . his own safety and/or the safety of
. . . his immediate family."

A
hearing on Schad's petition was originally scheduled for
July 18, but was continued until August 1 at Durrance's
request. On July 31, Schad dismissed the petition without
prejudice. Durrance then filed a motion seeking costs and
attorney fees under OCGA § 16-5-94 and OCGA §
9-15-14 (a) and (b). At the evidentiary hearing on that
motion, both of Durrance's coworkers who witnessed the
incident testified that Schad came to the real estate office
and spoke with Durrance and that the conversation
deteriorated into a shouting match. One coworker, a police
veteran with more than 25 years of experience, eventually
told Schad he needed to leave the premises. Schad initially
refused that request, but after a few minutes, he exited the
building and stood outside the door where he continued to
yell at Durrance, telling her, "You'll hear from
me." According to both coworkers, Schad threatened
Durrance by telling her she might not have the proper permits
for work done on her house and indicating that, in his
capacity as a county building inspector, he was going to
check on those permits.

Durrance
gave similar testimony, stating that Schad appeared at her
office on June 28, shortly after she had spoken with
Schad's wife. The two began to argue, with both parties
raising their voices. Durrance testified that her coworker
eventually came over to ask Schad to leave because Schad is
"a large man" and "he was leaning over my desk
[, ] hovering" and "he was very intimidating and
everybody in the office was shaking and scared." At one
point, Schad threatened to "pull [the building] permits
on my house, " and indicated she might not be able to
obtain permits in the future. Schad also asked Durrance
whether she was sure the swimming pool at her residence was
properly permitted. At that point, Durrance told Schad,
"I'm done . . . I do know some people here, too,
" and also told Schad that he did not "belong in
this position" as a building inspector.

After
Schad left the real estate office, Durrance filed a report
with the police and Schad was eventually served with a
warrant for trespass. Less than an hour after the incident,
Durrance was contacted by Shane Seeley, the Jasper County
Director of Planning and Zoning, who also served as
Schad's supervisor. According to both Seeley and
Durrance, Seeley visited Durrance at her office later that
day in an effort to defuse the situation and get the dispute
"worked out." During that conversation, Durrance
made clear to Seeley that she thought Schad should lose his
job. Seeley was unaware, however, of any other effort
Durrance may have made to get Schad fired.

Schad
testified and explained that on the day in question he
received a call from his wife asking why he had not completed
the work at the Durrance residence. Schad then went to
Durrance's office to discuss the situation, and the
conversation became "heated." Schad acknowledged
that he escalated the situation when he began asking Durrance
about her building permits, explaining, "I was being a
smart ale[k]. I shouldn't have said it." According
to Schad, Durrance responded by threatening him, saying,
"I got you. You sealed your doom. I'll have your
job. I know people in this town, too."

When
asked why he had filed the petition for the stalking TPO,
Schad responded "[t]he same reason why I got served a
trespass warrant, " explaining that he and Durrance did
not need to be around one another. Schad then elaborated:

Basically, I'm a man, she's a woman. I am rather
large. I'm loud. I coach football. . . . I've got a
big bark. Basically, I would never even touch a woman or
anything to hurt a woman. I did feel overbearing [during the
incident]. I wouldn't want anybody to do [what I did to
Durrance] to my wife. I felt it was best that I just . . .
have nothing to do with her. Me being a man and everything,
you know, if something did happen and the police did show up,
who are they going to look at?

Schad
further explained that Seeley had come back from his meeting
with Durrance and told him that Durrance was "going to
put pressure on this department" to fire Schad and that
given Schad's health problems, which included high blood
pressure, he just did not "need the stress." Schad
then explained "I got the TPO basically thinking that
she would just leave my job alone, leave me alone, and give
it a couple of weeks, she'd go on her way and I'd go
on my way."

Schad
also testified that after he filed his petition for the TPO,
he continued to experience stress over the situation because
builders that he interacted with as part of his employment
continued to ask him about the incident. As a result of this
stress, and to avoid seeing Durrance (whose office building
was located next door to Schad's county office), Schad
quit his job. He then dismissed his petition against
Durrance.

After
hearing this evidence, the trial court entered an order
denying Durrance's motion for costs and attorney ...

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